Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00869/2013

THE IMMIGRATION ACTS

Heard at Bradford
Determination Sent
On 11 June 2013
On 17 June 2013

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

Mohammad Anjum

Respondent

Representation:

For the Appellant: Ms L Mair, instructed by Lawrence Lupin Solicitors
For the Respondent: Mr M Diwnycz, a Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The respondent, Mohammad Anjum, was born on 8 January 1979 and is a male citizen of Pakistan. The respondent had appealed against the decision of the appellant dated 13 December 2012 to refuse to grant him asylum and to refuse to vary his leave to enter the United Kingdom and to remove him by way of directions under Section 47 of the Immigration, Asylum and Nationality Act 2006. His appeal had been considered by the First-tier Tribunal which, in a determination dated 19 March 2013, allowed the appeal under the Refugee Convention and on human rights grounds (Articles 2, 3 and 8) and dismissed the appeal in respect of humanitarian protection. I shall refer in this determination to Mohammad Anjum as “the appellant” as he was before the First-tier Tribunal and to the Secretary of State for the Home Department as “the respondent”.
2. The Secretary of State now appeals, with permission, to the Upper Tribunal. The respondent submits that the judge’s assessment of credibility was flawed. Granting permission, Judge Brunnen stated:
“The grounds on which the permission to appeal is sought contend that the judge erred in law when making her findings as to the appellant’s credibility in that she did not refer to or assess, individually or cumulatively, the inconsistencies in [the appellant’s] evidence of which particulars are given in the grounds. This is arguable.”
3. The grounds refer to a number of inconsistencies between the evidence of the appellant and that of his witness, Mr Bostan:
“For example the appellant’s evidence was that they had first had sex some five months after meeting, Mr Bostan said it was some fifteen – twenty days after first meeting. The appellant claimed he was open about his relationship with Mr Bostan and was openly affectionate but the latter said he was discreet because he did not wish his wife and child to find out about the relationship. Furthermore, the appellant claimed the plan was to live with Mr Bostan once his immigration status had been settled but the latter’s evidence was that he would continue to live with his wife and child. As individual points it is submitted that these issues are not determinative. However, it is submitted that cumulatively they indicate a very different account of the appellant’s circumstances as set out in the findings in this determination. The Tribunal failed to address any of these inconsistencies. It is therefore submitted that the credibility assessment is incomplete and that it is therefore not sustainable”.
4. I do not find the determination of the First-tier Tribunal should be set aside for legal error. I say that for the following reasons. Judge Mensah was very careful to consider the evidence as a totality before making her findings. She was also best placed to judge the credibility of the witnesses whom she saw cross examined. At [15], she makes a point of stating that she was “taking the evidence together ...” She notes that “the appellant underwent significant cross-examination” [16]. She found that “much of their [the appellant’s and Mr Bostan’s] evidence as to the circumstances of their relationship was consistent and certainly not inherently implausible”. I accept Ms Mair’s submission that the judge had taken the somewhat risky step of referring here to the evidence being “not inherently implausible” since it had been in such terms but the respondent had attacked the appellant’s credibility in the refusal letter. Further, the grounds do not make reference to the evidence of the appellant’s sister which the judge discusses at [18] and which she found to be “compelling”. The judge was clearly impressed by the evidence from a witness who though, although she supported the appellant in his appeal, was clearly distressed by hearing of the appellant’s sexual activities of which she disapproved. I find that, faced with that evidence, it is very likely that the judge would have concluded that the appellant is homosexual as he claims, whether or not she accepted the evidence (attacked in the grounds) of his relationship with Mr Bostan. As Ms Mair submitted, the inconsistencies in the evidence which I have quoted above and which are referred to by the respondent go to the question of the appellant’s relationship with Mr Bostan rather than his sexuality. It is abundantly clear that, having heard from the appellant and his sister, Judge Mensah concluded that the appellant is a homosexual. In the light of that finding, she would have been bound to have found that the appellant was exposed to the real risk of persecution or ill-treatment in Pakistan on account of his sexuality.
5. Mr Diwnycz, for the respondent, acknowledged that the challenge to the determination amounted to an assertion that the judge had made perverse findings of fact. Notwithstanding inconsistencies in the evidence (of which I find the judge was well aware) the conclusion that the appellant and Mr Bostan were in a homosexual relationship together was clearly open to the judge. She could, perhaps, have dealt with the apparent inconsistencies in the evidence of the appellant and Mr Bostan in greater detail but I accept that she took those inconsistencies in account in finding the core of the evidence to be credible. I find the assertion of perversity is not made out in this instance
6. Mr Diwnycz agreed to withdraw the Section 47 decision and consequently there was no need for me to address that issue.
DECISION
7. This appeal is dismissed.

Signed Date 13 June 2013

Upper Tribunal Judge Clive Lane